Citation Nr: 9902997
Decision Date: 02/02/99 Archive Date: 02/10/99
DOCKET NO. 95-26 513 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to benefits under the provisions of 38 U.S.C.A.
§ 1151 for additional disability, including hypertension,
Raynaud's disease, and disorders of the left arm, left first
rib, and lung, claimed as having resulted from VA surgical
treatment for thoracic outlet syndrome.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Phillip L. Krejci, Associate Counsel
INTRODUCTION
The veteran had active service from September 1962 to July
1964.
In October 1988, the veteran claimed entitlement to benefits
under the provisions of 38 U.S.C.A. § 351 (now 38 U.S.C.A.
§ 1151) for additional disability resulting from surgical
treatment for thoracic outlet syndrome at a VA medical center
(VAMC). That claim was denied in an October 1989 rating
decision. The veteran appealed, and the Board of Veterans'
Appeals (Board) denied the claim in an August 1991 decision.
In March 1992, the veteran, through his representative, moved
for reconsideration of the Board decision. The Board denied
the motion but, in view of a case decided by the Court of
Veterans Appeals during the previous November, Gardner v.
Derwinski, 1 Vet.App. 584 (1991), which prompted a stay in
adjudication of claims such as this one, the veteran was
invited to resubmit his claim after the stay was lifted.
In November 1993, the veteran resubmitted his claim. This
appeal arises from a June 1995 rating decision by the Boston,
Massachusetts, Regional Office (RO) that denied benefits
under the provisions of 38 U.S.C.A. § 1151 for hypertension,
Raynaud's disease, and disorders of the left arm, left first
rib, and lung, all claimed to have resulted from VA surgical
treatment for thoracic outlet syndrome.
REMAND
The veteran contends that the RO erred by failing to award
benefits under the provisions of 38 U.S.C.A. § 1151. He
maintains that he is more disabled, since October 1987
surgery for thoracic outlet syndrome at a VAMC, than he was
before the surgery.
Although the Board is not rendering a final decision at this
time, significant recent changes in the law applicable to
claims pursuant to 38 U.S.C.A. § 1151 (West 1991 & Supp.
1998), impel us to provide a discussion in some detail here.
The governing statutory law, set forth at 38 U.S.C.A. § 1151,
provides that, when a veteran suffers injury or aggravation
of an injury as a result of VA hospitalization or medical or
surgical treatment, not the result of the veteran's own
willful misconduct or failure to follow instructions, and the
injury or aggravation results in additional disability or
death, then compensation, including disability, death, or
dependency and indemnity compensation, shall be awarded in
the same manner as if the additional disability or death were
service-connected. See also 38 C.F.R. §§ 3.358(a), 3.800(a)
(1998).
The regulations provide, in pertinent part, that, in
determining whether additional disability exists, the
veteran's physical condition immediately prior to the disease
or injury on which the claim for compensation is based is
compared with the physical condition subsequent thereto.
With regard to medical or surgical treatment, the veteran's
physical condition prior to the disease or injury is the
condition which the medical or surgical treatment was
intended to alleviate. 38 C.F.R. § 3.358(b)(1).
Compensation is not payable if additional disability or death
is a result of the continuance or natural progress of the
injury or disease for which the veteran was hospitalized
and/or treated. 38 C.F.R. § 3.358(b)(2).
Further, the additional disability or death must actually
result from VA hospitalization or medical or surgical
treatment and not be merely coincidental therewith. In the
absence of evidence satisfying this causation requirement,
the mere fact that aggravation occurred will not suffice to
make the additional disability or death compensable.
38 C.F.R. § 3.358(c)(1), (2).
In addition, compensation is not payable for the necessary
consequences of medical or surgical treatment properly
administered with the express or implied consent of the
veteran or, in appropriate cases, the veteran's
representative. "Necessary consequences" are those which
are certain or intended to result from the VA hospitalization
or medical or surgical treatment. Consequences otherwise
certain or intended to result from a treatment will not be
considered uncertain or unintended solely because it had not
been determined, at the time consent was given, whether that
treatment would in fact be administered. 38 C.F.R.
§ 3.358(c)(3).
Finally, if the evidence establishes that the proximate cause
of the injury suffered was the veteran's willful misconduct
or failure to follow instructions, the additional disability
or death will not be compensable, except So as to avoid possible misunderstanding as to the governing
law, the Board notes that earlier interpretations of the
statute and regulations required evidence of negligence on
the part of VA, or the occurrence of an accident or an
otherwise unforeseen event, to establish entitlement to
38 U.S.C.A. § 1151 benefits. See, e.g., 38 C.F.R.
§ 3.358(c)(3) (1994). Those provisions were invalidated by
the United States Court of Veterans Appeals r
the Federal Circuit, in Gardner v. Brown, 5 F.3d 1456 (Fed.
Cir. 1993), and the United States Supreme Court, in Brown v.
Gardner, 513 U.S. 115 (1994).
In March 1995, the Secretary published an interim rule
amending 38 C.F.R. § 3.358 to conform to the Supreme Court
decision. The amendment was made effective November 25,
1991, the date the Gardner decision was issued by the Court
of Veterans Appeals. 60 Fed. Reg. 14,222 (March 16, 1995).
The interim rule was later adopted as a final rule, 61 Fed.
Reg. 25,787 (May 23, 1996), and codified at 38 C.F.R.
§ 3.358(c) (1998).
Subsequently, Congress amended 38 U.S.C.A. § 1151, effective
for claims filed on or after October 1, 1997, to preclude
benefits in the absence of evidence of VA negligence or an
unforeseen event. Pub. L. No. 104-204, § 422(a), 110 Stat.
2926 (1996); see also VAOPGCPREC 40-97 (Dec. 31, 1997).
Since the claim herein was filed before October 1997, it must
be adjudicated in accord with the earlier version of
38 U.S.C.A. § 1151 and the May 23, 1996, final regulation.
Thus, neither evidence of an unforeseen event nor evidence of
VA negligence would be required in order for this claim to be
granted.
In this case, the veteran reported, during July 1987 VA
outpatient treatment, that, during the preceding several
months, his left arm had became numb and that the numbness
increased when the arm was elevated, but returned to normal
when it was lowered. An April 1987 VA electromyogram had
shown mild plexus compression. Upon examination of the left
arm, there was subjectively decreased sensation to pinprick
and touch. Objectively, sensation was intact bilaterally to
pinprick, touch, temperature, vibration, and position. X-
rays were interpreted as showing bilateral cervical ribs at
C7 with large transverse processes at C5 and C6. The
impression was bilateral cervical ribs with left C7 partial
neuromuscular entrapment syndrome.
In October 1987, the veteran was admitted to a VAMC for
surgical treatment of thoracic outlet syndrome. X-rays after
admission were interpreted as not showing cervical ribs, so
it was determined that the appropriate surgical procedure was
resection of the left first rib, and that procedure was
performed. After surgery, the sponge count was not correct,
X-rays detected a retained sponge, and another surgical
procedure was performed to retrieve it.
An April 1989 VA outpatient treatment record noted that the
veteran continued to have sharp, axillary pain radiating down
the left arm that was associated with pain and a cold
sensation in the left hand. Another VA hospital admission
was suggested, but the veteran desired another opinion.
In a November 1989 letter, Edwin Wyman, Jr., MD, of
Massachusetts General Hospital, reported that, beginning in
1985, the veteran noted numbness and tingling in the left arm
and hand and sensitivity of the hand to cold. Adson's test
for thoracic outlet syndrome was positive, as was an
electromyogram. The condition worsened and, in October 1987,
the left first rib was excised by an axillary approach. On
examination, Adson's test was negative, there was good range
of motion of the left shoulder without atrophy, and there
were minor sensory changes, but no real motor abnormalities,
of the entire left arm. X-rays showed minor degenerative
changes of the cervical spine. The impression was that the
veteran had sustained pressure injury to nerves during the
operation.
The claim file includes an April 1990 letter from the VA
District Counsel in Boston, to an attorney for the veteran
and his wife, indicating that an administrative tort claim
they had filed had been settled, for $30,000. Also of record
is a Voucher for Payment under Federal Tort Claims Act,
Standard Form 1145, indicating that the cause of action had
accrued on October 23, 1987, and that the settlement was
based upon the need for a second operation due the retention
of a sponge in the operative site. A June 1990 check from an
attorney to the veteran and his wife shows that they received
their settlement, less a 20 percent attorney fee. In this
regard, the Board would emphasize that claims and settlements
under the Federal Tort Claims Act are administered pursuant
to a body of law, found in title 28 of the United States
Code, that is entirely distinct from determinations of
entitlement to veterans benefits provided in title 38.
Findings over the years indicate the need to clarify the
nature and extent of the veteran's condition. An April 1988
VA electromyogram showed evidence of denervation in the left
deltoid, suggesting axillary nerve injury. An October 1988
VA electromyogram showed resolving electrical findings but
continued sensory problems, probably causing pain. A May
1989 VA electromyogram showed some evidence of C6
radiculopathy but no plexus compression. A December 1990 VA
electromyogram showed more C5-6 involvement than previous
studies. January 1992 magnetic resonance imaging, conducted
to rule out a tear in the left shoulder, showed no
abnormality of the left brachial plexus. March 1993 VA X-
rays of the left shoulder showed calcium in the supraspinatus
tendon and the subacromial bursa, and the impression was
calcific tendonitis and bursitis. An August 1993 VA
rheumatology consultation resulted in an assessment of
chronic shoulder pain, calcific bursitis by X-ray, and point
tenderness over the biceps tendon but not in a pattern
consistent with symptoms. More recently, an addendum to an
August 1995 VA rheumatology consult showed a diagnosis of
supraspinatus tendonitis. November 1995 VA X-rays showed
extensive calcification along the left rotator cuff tendon,
suggesting calcific tendonitis. A November 1995 VA
electromyogram was essentially normal, with no change since
an April 1993 electromyogram.
At an August 1996 VA examination, the veteran reported
intermittent numbness and tingling in the left arm and hand.
On examination, there was no difference in bulk between the
left and right shoulders, deltoid and trapezius muscles
appeared normal bilaterally, and there was no swelling or
deformity. Strength was normal on the left and the right.
Motion was without pain and range of motion was the same on
the left and right, except that extension was to 30 degrees
on the left and 45 on the right. Diagnoses included history
of Raynaud's syndrome involving the left arm, no strength
differences between the left and right shoulders with almost
full range of motion, and no apparent rotator cuff lesions.
At a September 1996 VA neurologic examination, the veteran
reported pain in the left arm and shoulder blade area since
October 1987 surgery. He also reported that pain radiated to
the hand, that the four fingers were numb, and that the hand
became white and painful in cold weather. On examination,
sensation to pinprick was diminished in the lateral aspect of
the left forearm. The impression was chronic pain syndrome
in the left upper extremity following surgery for thoracic
outlet syndrome and some numbness that might be in the
distribution of a radial cutaneous nerve. The examiner
indicated that he would order an electromyogram.
Under the present state of the record, it is not entirely
clear that, since the October 1987 VA surgery, the veteran
has additional disability of the left arm or, if he does, the
precise nature thereof. He reported sensory deficit in the
left arm and cold sensitivity of the left hand both before
and after the surgery. He has reported pain, and did so at
the September 1996 VA neurologic examination, but not,
apparently, at the August 1996 VA examination. Reports of
the 1996 examinations are not entirely consistent. Although
chronic pain syndrome was diagnosed at the September
examination, the diagnosis seems to have been based on
history from the veteran, because objective evidence of pain
was not noted in examination findings. Electromyograms over
the years seemed to show a resolving neurologic disorder, but
the study ordered in September 1996 is not included in the
claim file. Finally, the significance of calcium deposits in
the left shoulder, and the relationship of same to the
October 1987 surgery, has not been addressed. Accordingly,
the veteran must be afforded a thorough examination, that
takes into consideration both pre- and postsurgical treatment
records, to determine whether he has additional disability
resulting from the October 1987 surgery.
The Board notes that, under Issues Presented for Review in an
April 1997 statement by the veteran's representative,
references to hypertension, lung disorder, and Raynaud's
syndrome, were underlined in ink and a notation appended that
those issues "appear to have been withdrawn." However, the
author of that notation is unknown. At a November 1995
hearing, the veteran's representative broached the subject of
clarification of the issue. Subsequent testimony suggested
that the veteran understood that removal of the left first
rib was a necessary consequence of the October 1987 surgery,
but other issues were not addressed.
The Board also notes that a claimant seeking benefits under a
law administered by the Secretary of Veterans Affairs has the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well
grounded and, if such evidence is submitted, the Secretary
has the duty to assist a claimant in developing additional
evidence pertaining to the claim. 38 U.S.C.A. § 5107(a). If
the claim is not well grounded, there is no duty to assist.
Epps v. Brown, 9 Vet. App. 341 (1996), aff'd sub nom. Epps v.
Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.
Ct. 2348 (1998); Murphy v. Derwinski, 1 Vet.App. 78 (1990).
In addition, the Court has ruled that a claimant under the
provisions of 38 U.S.C.A. § 1151 must submit sufficient
evidence to make a claim well grounded. Ross v. Derwinski, 3
Vet.App. 141, 144 (1992); Boeck v. Brown, 6 Vet.App. 14, 17
(1993). Thus, a claim for benefits under the provisions of
38 U.S.C.A. § 1151 must be supported by medical evidence that
disability resulted from VA hospitalization, examination, or
treatment.
A well-grounded claim is one which is meritorious on its own
or capable of substantiation. Such a claim need not be
conclusive, but only plausible, to satisfy the initial burden
of 38 U.S.C.A. § 5107(a). Murphy, supra. To present a well-
grounded claim, the claimant must provide evidence; mere
allegation is insufficient. Tirpak v. Derwinski, 2 Vet.App.
609 (1992). The evidence the claimant must provide must be
sufficient to justify a belief by a fair and impartial
individual that the claim is plausible. Lathan v. Brown, 7
Vet.App. 359 (1995). Where the determinative issue is
factual in nature, competent lay evidence may suffice.
Gregory v. Brown, 8 Vet.App. 563 (1996). Where the
determinative issue involves medical etiology or diagnosis,
medical evidence is required. Lathan, supra.
We are by no means certain, at this juncture, that the
present claim is well grounded. The absence of a well-
grounded claim, however, does not absolve VA of all duties.
By statute, "If a claimant's application for benefits . . .
is incomplete, the Secretary shall notify the claimant of the
evidence necessary to complete the application." 38 U.S.C.
§ 5103(a). This duty to notify arises as to an initial claim
when "the Secretary was on notice that relevant evidence may
have existed, or could have been obtained, that, if true,
would have made the claim 'plausible' and that such evidence
had not been submitted with the application." Robinette v.
Brown, 8 Vet.App. 69, 80 (1995); see also McKnight v. Gober,
131 F.3d 1483, 1484-85 (1997) (adopting the Court's
interpretation of section 5103(a) in Robinette).
Here, it appears that virtually all medical records pertinent
to this claim are in the possession of VA, and that the issue
of well-groundedness, as well as possibly the ultimate merits
of the claim, will turn upon medical opinion evidence as to
the interpretation to be derived from those records under
VA's post-Gardner revised regulations as to section 1151
entitlement. Accordingly, and in the exercise of our
authority to give the veteran the benefit of the doubt as to
any material issue, the Board will, under Robinette, supra,
remand this matter for further development and
readjudication, as set forth below. The Board recognizes
that this case presents a complex fact situation. We are not
competent to make the sophisticated medical analysis required
to decide the appeal without a solid foundation in the
record, and we are placing much reliance upon the medical
examiner who will, pursuant to the instructions below,
address whether there is additional disability shown and, if
so, the nature of its etiology and whether it reflects
necessary consequences of the treatment accorded to the
veteran.
Although we are not rendering any final decision at this
time, the Board notes that there is no evidence in the claim
file that hypertension or a lung condition resulted from the
October 1987 surgery. Thus, under the present state of the
record, claims that that they did are apparently not well
grounded. The veteran is advised that, if he has evidence to
the contrary, he should submit it. In that regard, and in
view of the notation appended to his representative's April
1997 statement, the veteran should be asked to clarify the
issue on appeal.
In view of the foregoing, the case is REMANDED to the RO for
the following action:
1. The veteran should be asked to clarify his
claim that a left first rib disorder resulted from
the October 1987 VA surgery. In addition, he
should be asked to submit any evidence he has that
hypertension and a lung disorder resulted from
that surgery.
2. The RO should obtain from the veteran the
names and addresses of all health care providers
from whom he has received treatment for disorders
of the left upper extremity, including Raynaud's
disease, since 1985. Thereafter, the RO should
obtain legible copies of all such records that
have not already been obtained.
3. Upon completion of the development in
paragraphs 1 and 2 above, the veteran should be
afforded a VA examination to determine what, if
any, additional disability resulted from the
October 1987 surgery for thoracic outlet syndrome.
The examiner will need to address this question
with particular attention to the veteran's
condition before and after the 1987 VA surgery.
If any additional disability is identified, the
examiner should provide his or her professional
opinion as to whether such additional disability
was intended to result from, or certain to result
from, the treatment that was given. Also, the
examiner should address the significance of
calcific deposits, if there are any, in the
veteran's left shoulder; should render an opinion
as to whether those deposits resulted from the
1987 surgery; and, if they did so result, should
state whether they were intended to result from,
or certain to result from, the treatment that was
given, and, finally, should describe any current
disability they cause. It is important that the
examiner has access to the veteran's claims
folder, including this Remand, prior to the
examination. All indicated tests should be
conducted. The factors upon which the medical
opinion is based must be set forth in the report.
4. When the above development has been completed,
and all evidence obtained has been associated with
the file, the claim should be reviewed by the RO.
If the decision remains adverse to the veteran in
any way, he and his representative should be
furnished with a Supplemental Statement of the
Case. They should then be afforded a reasonable
opportunity to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration if appropriate. The veteran need take no
action until he is further informed.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals, or by the United States Court of
Veterans Appeals, for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA ADJUDICATION PROCEDURE MANUAL M21-1, Part IV,
directs the RO to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ANDREW J. MULLEN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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